Wednesday, February 8, 2012

The Left's Constitutional Wish List

Do the left wing in our country see our Constitution as an archaic obstacle to their goals? The recent evidence certainly points to it. The question then becomes, if the left could wage a magic wand, with what would they replace our Constitution?

It was about two years ago that the left's "go to guy" for policy issues, Ezra Klein, complained about the Constitution, that "the text is confusing because it was written more than a hundred years ago."  The left has been working through the Courts to work fundamental changes to the Constitution for 50 years, creating new rights out of whole cloth in many instances while, in other areas of  enumerated rights, limiting them. As to the latter, religion and property rights have been the arenas of the most judicial activism.

Thus it was no surprise when a sitting left wing Supreme Court Justice, Ruth Bader Ginsburg, should opine that Egypt should not look to the U.S. Constitution as a model, but rather to South Africa's Constitution, as it "embrace[s] basic human rights . . . [and] an independent judiciary." Nor is it surprising to see the New York Times weigh in with an editorial, suggesting that our Constitution has many faults. "The rights guaranteed by the American Constitution are parsimonious by international standards," and the Constitution is "difficult to amend." I add as a comment here that it is not difficult to amend our Constitution if you are a federal judge who wants to see their own personal policy choices made into Constitutional law. At any rate, the NYT author then launches into the crux of the left wing criticism of our Constitution:

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms."

As to a right to travel and a presumption of innocence, the NYT criticism is ridiculous.  Those have been fundamental rights recognized by our Courts since the time of our founding.  Likewise, the left  uniformly hates the thought of an armed populace.  But the real nub of the NYT criticism is that our Constitution does not make us all wards of the state by entitling us all to "food, education and welfare."    

 The South African Constitution so beloved of Justice Ginsburg goes further than merely "food, education and welfare."  It includes:

-  a right to housing;
-  makes affirmative action Constitutional;
-  has a provision requiring regulation of hate speech;
-  provides a right of all workers to unionize and strike;
-  provides a right to a clean environment;
-  allows property to be expropriated not merely for a public purpose, but also "in the public interest;
-  provides an extensive children's bill of rights; and finally,
-  it contains a clause that allows the government to limit the above rights as it deems necessary.

In short it is a leftie's wet dream.  It provides cradle to grave welfare, extensive unionization, it limits property rights, allows for government thought control under the auspices of hate speech, and finally, contains a catch all provision that allows the government to limit all of the above rights.  It is a Constitution that requires big government, massive taxation to provide  the welfare state, and that allows religious freedom on one hand but limits it on the other through hate speech laws and by requiring the state to assume functions that are traditionally charitable.  And on top of that, the catch all provision would allow the government expansive power to drive a gaping hole through every one of the rights.

If you want to see where the left would lead our nation, Ginsburg and the NYT are not exactly hiding the ball.  They would take us from a nation of limited government to a socialist nation with an expansive government.  Unfortunately, through judicial activisim, they are well on the way to achieving their goal.  It is a process that, as Newt Gingrich and Andrew McCarthy point out, must end.


Rhymes With Right said...

I would like to point out that the justice has it right.

Our Constitution, with its vague language and archaic terminology, really is not a proper model for Egypt to use.

After all, our Constitution was written by and for an overwhelmingly Christian people who were familiar with and supportive of Enlightenment ideals and accepting of a legal system rooted in the Common Law tradition of England.

Egypt fits none of those criteria, and so would find our Constitution a poor fit.

GW said...

Hi Greg. Thanks for stopping by and commenting.

If the questions of which Constitution to use as a model were centered on mere linguistics and clarity, I would agree with you. Our Constitution is brief and to actually enact it in another country today, it would require not merely the language of our Constitution, but the sum of the intent of the Founders and the 200 plus years of interpretation.

But the issue here goes beyond clarity or linguistics. As I note, what the left are embracing are Constitutions that contain, as fundamental rights, all the trappings of the socialist welfare state in toto. That is substance.

Can you imagine, for one minute, what life would be like in America today if the Greens were able to litigate on a Constitutional provision that guaranteed each American a fundamental right to a clean environment? We would be litigated back to the 19th century.

You also miss one of the fundamental aspects of these modern Constitutions. Virtually every one of them, after granting these extensive "rights," then turns around and provides the government with a low-threshold trapdoor to limit all of the rights. If you trust government, than such a trapdoor is fine. But if you don't, then such Constitutions are highly suspect indeed.

Egypt is not devoid of European influence. Its judicial system is based on the Napoleonic code. Its governing system was nominally a Republic, though a dictatorship in practice.

At any rate, I am not sure of which "Enlightenment" ideal, either in terms of state power or the bill of rights, you would deny to the Egyptians or see them alter. Nor am I sure which "rights" you would see added to their Constitution.